LGBTQ Asylum Considerations

Individuals being persecuted because of their sexual orientation and identified gender is not a new phenomenon. Oftentimes, those who identify as lesbian, gay, bisexual, transgendered, and queer or questioning (LGBTQ) are the victims of discrimination, trauma, and persecution. Many LGBTQ refugees who fear that they will be harmed based on their gender identity or sexual orientation will seek protection and new opportunities in the U.S.

Asylum is the legal protection granted to those who have come to the U.S. and are unwilling or unable to return to their country of origin because of persecution or fear of persecution based on their race, religion, nationality, membership in a particular social group, or political opinion. Those who are granted asylum protection are often permitted to remain and work in the U.S.

What are the benefits of being granted asylum?

Work Authorization
Those who are granted asylum will be able to work in the U.S. legally by filing Form I-765, Application for Employment Authorization with U.S. Immigration and Citizenship Services (USCIS). An individual cannot apply for employment authorization documents (EADs) at the same time that he or she applies for asylum. However, the individual may do so if 150 days have passed since he or she has completed their asylum application (excluding days caused by the individual, i.e. request to reschedule interview) and no decision has been made on the application.

Those who are granted asylum may work immediately. Those who have a pending asylum application or are granted asylum do not have to pay a fee to apply for their first EAD.

Bringing Family Members to the U.S.
Those who are granted asylum may petition to bring their spouse and children to the U.S. by filing a Form I-730, Refugee/Asylee Relative Petition. For a child to be included on the application, he or she must be under 21 years old and unmarried. The petition must be filed within two years of being granted asylum, unless there are humanitarian reasons to excuse the deadline. There is no fee to file this petition.

Filing for Permanent Residence
One year after being granted asylum, an individual may apply for a green card (permanent residence). To apply, he or she will file  Form I-485, Application to Register Permanent Residence or to Adjust Status.

What are the basic requirements to qualify for asylum?

To qualify for asylum an individual must meet the following basic requirements:

• The individual must be present within the U.S.
• The law states that an application should be made within one year of entering the country. However, there are some exceptions to this deadline.
• An individual may apply for asylum by filling out Form I-589, Application for Asylum and for Withholding of Removal and submitting it to USCIS.
• If an individual is in removal proceedings, he or she may apply for asylum in court.

What factors will USCIS take into consideration when an LGBTQ individual applies for asylum?

Many LGBTQ individuals have been granted asylum under the social group category. Some who have engaged in LGBTQ or HIV rights activism in their home country have been able to apply under a “political opinion” category. In both circumstances, the USCIS will consider two factors: visibility and persecution. Visibility factor takes into consideration whether the LGBTQ community is sufficiently visible in their home country. Persecution factor takes into consideration whether one’s treatment amounts to persecution due to their LGBTQ identity.

What happens if my asylum application is denied?

Those who are denied asylum may appeal the decision to the Board of Immigration Appeals and the appropriate U.S. Circuit Court of Appeals.

If you are an individual who identifies as LGBTQ and is interested in applying for asylum, it is important to seek the guidance of an experienced New York immigration lawyer. The immigration lawyers at Bretz & Coven, LLP have successfully represented hundreds of asylum applicants, from uncomplicated first-time applicants to individuals already in removal proceedings. If you are contemplating applying for asylum, or want to appeal an adverse asylum decision, contact our experienced New York immigration lawyers right away. Call (212) 267-2555 or fill out our contact form.